February 24, 2014

Today, the United States Supreme Court (SCOTUS) entered its much-anticipated ruling on the Petition for Writ of Certiorari ("Petition") filed in the DiCristina poker litigation. As expected, SCOTUS declined to hear the appeal ("denied certiorari" or "denied cert") without comment (the Court's denial is reflected on page 5 of today's lengthy Orders List). Here are a few quick points to keep in mind about both SCOTUS' ruling and the ultimate impact—or lack thereof—of the DiCristina litigation.

A. We Do NOT Know Why SCOTUS Denied Certiorari

The Court did not indicate why it denied cert. This is standard practice for the Court. All we know for certain is that the Petition failed to attract four Justices interested in considering the appeal. So, we can only speculate as to why cert was denied. Likely, some of the reasons playing into the decision included the lack of a split among the lower courts over the interpretation of the Illegal Gambling Business Act (IGBA), various procedural issues related to preservation of error (discussed here and here), and the relatively low profile of the IGBA, which is not used often by the federal government, and rarely against poker operations.

Also, no Justice filed an opinion dissenting from the denial of cert, explaining why they felt cert was appropriate. Contrary to PokerNews' coverage of the case, it is simply not true that "If the petition is declined but there were justices who wanted to take it, the outvoted justices often write short opinions on why the Supreme Court should have taken the case." In fact, opinions dissenting from the denial of cert are exceedingly rare, probably happening only a handful of times per Term out of thousands of denials of cert. The lack of a dissenting opinion doesn't mean that no Justice voted to grant cert, it merely means that the denial of cert was routine.

B. A Denial of Certiorari Is NOT a Ruling on the Merits

Often following a denial of cert, the press will say something like, "The Supreme Court today ruled that poker is covered by the IGBA." This sort of comment is not just technically incorrect, but is false in a legally significant manner. A mere denial of cert means nothing more or less than that SCOTUS did not take the case. It does not mean that SCOTUS agrees or disagrees with either the conviction of DiCristina or the Second Circuit's reasoning in its decision. It does not mean that the Second Circuit's decision has some kind of SCOTUS stamp of approval. It does not indicate any kind of implicit endorsement of Judge Weinstein's ruling finding poker is a game of skill. All SCOTUS' denial of cert means is that the Second Circuit's decision is the final word on the matter in this case, at this time.

C. DiCristina Is a Significant Blow to the "Skill Game" Argument for Poker

Because the Second Circuit's decision stands as written, it will be difficult for any future attacks on federal poker prosecutions under the IGBA. Although DiCristina technically only is controlling authority in the Second Circuit, case law cited in the DiCristina decision suggests that most, and likely all, of the other Federal Circuits would follow DiCristina or find it persuasive authority if confronted with a poker prosecution under the IGBA. In fact, a federal district court in Guam has already rejected Judge Weinstein's opinion and adopted much the same reasoning as used by the Second Circuit's decision in finding the IGBA applies to poker. Although a "skill game" challenge to the IGBA is theoretically possible in another Circuit, any such challenge would be like trying to swim with an anchor tied to one leg.

Further, even though the Second Circuit completely passed on any analysis of Judge Weinstein's finding that poker is a game of skill, it is difficult to see where Judge Weinstein's opinion will be of any real benefit in future poker litigation. Although the case can be cited with respect to the skill game analysis, pragmatically speaking, Judge Weinstein's opinion will have little or no influence. In most states, poker's status as gambling is already established by statute or case law. In the few states where poker's status as gambling is arguably undecided, it is doubtful that an appellate court would adopt the skill game argument. After all, since 2007, appellate courts in North Carolina, Pennsylvania (my discussion), Kansas (the "Kandu case"), and South Carolina (my discussion) have all considered and rejected skill game arguments for poker. Appellate courts in Colorado and Virginia have declined to rule on the skill game issue. On the federal front, other federal criminal statutes potentially applicable to poker—e.g., UIGEA, the Travel Act, and the RICO Act—all look to state law to determine the definition of illegal gambling, without the ambiguous language found in the IGBA.

The skill game argument for poker legalization is revered as unquestionable dogma within the echo chamber occupied by poker partisans. But out in the real legal world, the argument is oh-fer in all of the appellate courts to consider the issue. As I often tell younger attorneys and law clerks who work with me on significant motions and appeals: "It doesn't matter how brilliant your argument is. Sometimes, the court just isn't buying what you're selling."

D. At Best, DiCristina Is Merely a Symbolic Victory for Poker Players

I presume the poker media will be filled with quotes and analysis from the PPA and other poker partisans expressing disappointment with SCOTUS' denial of cert. These comments and analyses will all be qualified by reminders that Judge Weinstein found poker to be a game of skill, which the poker community will latch onto as the important feature of the DiCristina litigation. Such a mindset is as predictable as it is misguided.

As I noted after the Second Circuit entered its decision, the legacy of Judge Weinstein's DiCristina ruling will most likely be as the Baxter v. United States of the modern poker era. Baxter, decided in 1986, is another federal district court case which held that poker was a game of skill for purposes of federal law, albeit a federal tax statute. Within the poker community, Baxter has long been touted as a significant legal victory. The reality is that Baxter was actually an obscure decision of little or no consequence to the issue of poker's legal status. Like Baxter, Judge Weinstein's ruling in DiCristina is ultimately nothing more than a nice little vanity award, soothing the bruised egos of poker players who crave mainstream respect.

E. The Fight for Poker Legalization Is—and Always Has Been—an Issue for State Legislatures

One silver lining in SCOTUS' denial of cert in DiCristina is that it might finally drive home to poker players that the poker legalization fight—whether for home games or online poker—cannot be won magically with a simple pronouncement by a court. Instead, poker legalization can only be won by changing state law via new legislation. Even if a miracle federal online poker bill would materialize, there would necessarily be an opt-in/opt-out fight in every state. Pursuing the "game of skill" litigation strategy has not advanced the cause of poker legalization at all. It's time to take the legalization fight to where it matters—the state legislatures.

February 21, 2014

We could know as early as this afternoon, and certainly by early next week, whether the U.S. Supreme Court (SCOTUS) will grant certiorari ("cert") in the DiCristina poker case. After reviewing DiCristina's Petition and the Department of Justice's Brief in Opposition, the big question remains: What will SCOTUS do?

My prediction: SCOTUS denies cert without comment.

Now, I may well be wrong. In fact, as a poker player, I actually hope I am wrong. But as a lawyer whose day job requires me to monitor appellate cases, I just think the deck is stacked against DiCristina, and a grant of cert is a serious longshot.

I. Why SCOTUS Will NOT Take DiCristina

A. Pure numbers: As I have noted previously, SCOTUS only takes 80 or so cases per Term. Even after weeding out cases with little or no chance whatsoever, SCOTUS still only takes roughly 4% of cases. The 4% grant rate is still somewhat misleading. There are in every Term a certain number of high profile cases which SCOTUS will almost certainly take. That means the number of open slots is reduced for the remaining set of cases from which the Court will select its remaining docket. And the Court has four additional conferences this Term, as well as several conferences early next Term from which to select the cases to fill its docket for the 2014-2015 Term.

B. Subject matter: Take a look at just a few of the notable cases to be considered today in the judicial conference. DiCristina will be competing against cases raising issues involving the Confrontation Clause of the Constitution, police use of force, Fourth Amendment search and seizure, ERISA plan litigation, anti-trust law, the Federal Rules of Evidence, immigration law, securities law, Second Amendment gun rights issues, class action litigation issues, administrative agency law, and death penalty appeals. Cases in which SCOTUS recently granted cert raise issues related to copyright and patent law, international law, environmental law, First Amendment law in the context of elections, and federal tax law. These topics are the bread and butter of SCOTUS' docket.

Certainly interpretation of a federal criminal statute such as the issue raised in DiCristina would fit within SCOTUS' normal range of cases. But to get the Court's attention, such a case generally has to present a pressing concern that requires the Court's intervention. After all, a grant of cert to DiCristina makes it less likely the SCOTUS will take other potentially important cases. So, SCOTUS usually selects cases where there is a split in how the lower federal courts are interpreting the relevant statute, which is a sign that SCOTUS needs to resolve the split in interpretation. Or the case needs to present a pressing federal concern that requires immediate resolution by SCOTUS. Neither of these factors are present in DiCristina.

To be blunt, the Illegal Gambling Business Act (IGBA) has been around a long time. It has been previously applied to poker operations. The arguments raised in DiCristina are novel, but the Second Circuit's decision does not break with any established interpretation of the IGBA. There simply do not appear to be many IGBA cases in general being litigated, and few of them concern poker. Even if SCOTUS thinks the Second Circuit was wrong, or was right for the wrong reasons, nothing about the case really requires the Court to take the case and resolve the issue immediately, as opposed to waiting for further challenges to percolate their way through the system to see if other appellate courts agree or disagree with the Second Circuit.

C. Procedural issues: As noted in my prior discussion of the parties' SCOTUS filings, there are potential procedural issues related to whether DiCristina preserved error on his main issue—whether the Second Circuit erred in failing to follow the Nardello line of cases. DiCristina did not cite to or argue this line of cases in the District Court or before the Second Circuit. DiCristina argues the DOJ waived the issue, though the Second Circuit disagreed with that contention. SCOTUS is less likely to take a case where the underlying appellate court decision did not even analyze the main issue raised in the Petition for Certiorari. Further, SCOTUS does not like to take cases with significant procedural issues, because those issues may prevent the Court from reaching the merits of the case. Although SCOTUS could look past these procedural issues, the case is certainly far from "clean".

D. The facts are not compelling: Although many Americans play and enjoy poker, poker simply lacks a certain gravitas that is typically associated with SCOTUS cases. Also, DiCristina is not about small stakes home games, it's about a for-profit poker room, complete with armed guards and video surveillance, taking in thousands of dollars, and admittedly operating illegally under state law. Although SCOTUS focuses on the legal issues rather than factual issues in making cert decisions, DiCristina does not present a compelling story of grave injustice to catch the Court's eyes.

II. Why SCOTUS Might Take DiCristina

A. Government overreach: SCOTUS has shown an interest in recent years in reining in the scope of the federal government in a number of areas. Here, where the DOJ is arguing in favor of a broad interpretation of a federal criminal statute, and where a federal criminal statute is being used to prosecute a fairly small scale gambling operation, some of the Justices might want to consider the case.

B. DiCristina's counsel: DiCristina is represented by Neal Katyal, a former U.S. Solicitor General, and a federal appellate court judge nominee. Counsel for the supporting amicus curiae include other legal heavyweights, such as Paul Clement (another former U.S. Solicitor General), and Thomas Goldstein (founder of SCOTUSblog). Given this array of attorneys, the DiCristina Petition will certainly garner more attention among the Justices than a typical case. In law as in life, it pays to travel in the right company.

III. Conclusion

We will know fairly soon whether SCOTUS will grant cert in DiCristina. Whether cert is granted or denied, however, what the Court's cert decision means is a topic for another post. Just a rule of thumb: Never believe the hype from either side to litigation. Oh, and manage your expectations.

February 20, 2014

As most in the poker world know, the DiCristina petition for writ of certiorari ("cert") will be considered by the United State Supreme Court (SCOTUS) in its regular conference tomorrow. As a reminder, the conference is only a vote on whether to accept the appeal. If SCOTUS does grant cert, then additional briefing will occur, and the case would likely be set for oral argument early in the Court's 2014-2015 Term (each Term runs from early October through late June). A decision would likely not be entered until late 2014 or early 2015.

But before we get too far ahead of ourselves, there is still the formidable hurdle of the conference vote tomorrow. Previously, I took a look at DiCristina's Petition and several supporting amicus curiae briefs. Since then, the Department of Justice (DOJ) has filed a Brief in Opposition ("Resistance"), and DiCristina has filed a Reply Brief. Neither document really breaks any significant new ground, and both documents mostly rehash well-worn points and counterpoints. But to SCOTUS, these documents will be the primary exposition of the DOJ's position and DiCristina's rebuttal. For the sake of completeness then, let's take a quick look at both documents.

I. The DOJ Does Not Seem to View the Case as Particularly Significant

There is a noticeable contrast between the tone of the DOJ's Resistance and the Petition and amicus briefs to which it responds. The Petition and amicus briefs were notably passionate, filled with rhetorical flourishes suggesting the case is about more than a poker game. The DOJ's Resistance, however, is notably dull and workmanlike. Although the DOJ's Resistance hits all the main expected points in its legal analysis, the style and tone of the Resistance give the impression it is just another brief coming off the DOJ's mass production line.

Look, the DOJ has a team of sharp appellate attorneys. But the DOJ has to file hundreds of SCOTUS briefs each Term, not to mention handling thousands of appeals in the lower courts. The DOJ generally has a pretty good idea which appeals are more likely to catch SCOTUS' attention, and any filings in those cases simply get a greater degree of rhetorical polish. Here, it seems the DOJ views DiCristina as a run-of-the-mill cert petition unlikely to be on SCOTUS' radar. Thus, DiCristina is unworthy of the DOJ's A-game.

As expected, the DOJ chose to highlight some rather inconvenient facts which take a bit of the shine off DiCristina's argument:

Petitioner [DiCristina] employed paid security, including an armed guard, and used a video surveillance system to decide who would be admitted to the warehouse. Games often lasted all night, and "[p]layers were plied with free food and drinks by a waitress to induce them to stay and play longer."

Total wagers at the poker club amounted to tens of thousands of dollars per night. Dealers collected a five percent "rake" from each pot, keeping 25% as payment. "The remaining funds from the rake were used for expenses relating to the operation of the business and for profits."
(Resistance, p. 2 (record citations omitted))

The DOJ's recitation of these facts serves two purposes. First, it places the focus of the legal analysis on the gambling business requirement of the Illegal Gambling Business Act (IGBA), a nod to the Second Circuit's analytical distinction between whether poker is gambling and whether running a for-profit poker room is an illegal gambling business (seeDecision, p. 11, n. 6). Second, it undercuts the notion suggested by DiCristina and his supporting amici that poker itself is under attack by the government. Here, the DOJ gets a two-fer, distinguishing the DiCristina game from a casual home game, while simultaneously suggesting there was some sort of nefarious conduct involved. After all, armed guards! Surveillance! It's far short of a Casino-style crime syndicate, but the DOJ certainly wants the idea of organized crime floating out there in SCOTUS' chambers.

B. Interlocutory Posture of the Case

The DOJ begins with an argument that the Petition is premature ("not ripe for review") because the current ruling is interlocutory in nature (Resistance, p. 9). Essentially, the DOJ argues that the lower courts have not yet completed all action on the case because the Second Circuit ruling requires a remand to the District Court for entry of a judgment of guilt and official sentencing before there is a final ruling for SCOTUS to review. This argument rests on the standard legal principle that appeals are generally not permitted prior to entry of final judgment by the trial court.

DiCristina replies that he has in fact been sentenced, and will not be taking a separate appeal from that sentence. (Reply, p. 10). DiCristina further notes that there was, in fact, a final judgment entered by the trial court, albeit a judgment of acquittal. Although an unusual procedural situation, SCOTUS has previously permitted cert petitions under such circumstances. Further, declining to consider the pending cert petition on this technicality is a waste of judicial resources, as the parties will inevitably wind back at the same position even if a second appeal to the Second Circuit is required.

Here, DiCristina clearly has the better of the argument. In fact, it seems a bit silly for the DOJ to have even raised this technicality. In any event, even if the procedural posture of the case is unusual, it will not prevent SCOTUS from taking the case if it is inclined to consider the merits of the argument.

C. Preservation of Error

One of the two main issues raised by DiCristina's Petition is that the Second Circuit failed to consider the Nardello line of cases in which SCOTUS has previously interpreted other federal statutes which have a state law violation element. Predictably, the DOJ argues that DiCristina failed to preserve error on this point by not citing the Nardello line of cases in the Second Circuit, and failing to file a motion for reconsideration to bring this alleged error to the Second Circuit's attention. (Resistance, p. 16). DiCristina replies with a version of his prior complaint that the DOJ waived the issue by conceding in the Second Circuit that the IGBA required a federal definition of gambling, and the Second Circuit improperly decided the issue without giving the parties an opportunity for further briefing of the point. (Reply, pp. 5-7). In any event, DiCristina asserts, SCOTUS can take up the case even if the Second Circuit passed on that issue.

As discussed previously, it appears DiCristina is on the wrong side of the error preservation issue. The Second Circuit found that the DOJ had not waived the federal definition issue (Decision, p. 11, n. 9), and SCOTUS is likely to accept the Second Circuit's view on such a procedural issue. It is also clear DiCristina failed to argue the Nardello line of cases at all in the Second Circuit (nor in the District Court for that matter).

But more to the point, DiCristina faces twin hurdles with his Nardello argument. First, because DiCristina failed to argue the Nardello line of cases in the Second Circuit, the Second Circuit has not ruled on the merits of that argument. Although SCOTUS could nonetheless consider the Nardello argument on its own initiative, it would be highly unusual for the Court to do so. Second, and perhaps most important, SCOTUS looks for cases where the merits issues (here, the proper interpretation of the IGBA with respect to poker) are clear and unencumbered by procedural issues. With a severely constrained docket of only 80 or so cases per Term, the Court does not like to waste a valuable cert grant on a case where they may decide that a procedural issue prevents them from deciding the merits issues. The more the parties bicker about procedural issues like waiver of arguments and preservation of error, the less likely SCOTUS is to grant cert.

D. Nardello and the Federal Definition of Gambling

The real issue lurking in all of the SCOTUS briefing is whether the IGBA has an independent definition of "gambling" that is a separate element apart from the requirement of a state gambling law offense. Recall that the Second Circuit found there was no federal definition of gambling in the IGBA, and that whether the predicate gambling offense had occurred was determined purely as a matter of state law. Instead of a full-throated defense of the Second Circuit's decision, however, the DOJ's Resistance takes a slippery approach. Essentially, the DOJ—likely concerned by DiCristina's Nardello argument—makes the curious argument that the Second Circuit merely held that the IGBA did not define "gambling" in the manner proposed by DiCristina, while backing away from the Second Circuit's suggestion that state law provided the sole definition of "gambling". (Resistance, p. 14). DiCristina's Reply properly and prominently calls out the DOJ's shifty argument. (Reply, pp. 1-4). However, this likely will not factor much in SCOTUS' consideration of the Petition—the Court rarely takes a case merely because the underlying appellate court was wrong in its result or its reasoning.

The DOJ's Resistance does address the Nardello line of cases on their merits. (Resistance, p. 15). The DOJ begins by arguing that none of the Nardello line of cases addresses the IGBA, which is undeniably true. Of course, DiCristina's Reply points out that the cases arise from a range of similar statutes in which a federal crime has a state law offense as an element.

Turning to the policy reason behind the Nardello line of cases—the idea that a state "label" for a crime should not determine, by itself, whether that crime qualifies as a predicate offense for a federal criminal statute—the DOJ essentially argues that all that matters is whether the state gambling offense is consistent with the general concept of "gambling" as it is understood throughout the United States.

Assuming that the approach of [the Nardello line of] cases applies to [IGBA] Section 1955's reference to "gambling," state law would not necessarily be irrelevant to ascertaining the meaning of that word. For example, in Taylor, this Court explained that, in ascertaining the ordinary meaning of the term "burglary," it would look to "the generic sense in which the term is now used in the criminal codes of most States." Under that analysis, the [Second Circuit] court of appeals would have gone astray only if New York law differed significantly from the law of other States, such that it was not an appropriate exemplar of the States' understanding of "gambling." But New York law is not, in fact, distinct in that regard. Rather, the law of many States defines gambling as wagering on an uncertain result or specifically characterizes poker as a form of gambling. (Resistance, pp. 15-16 (citations omitted)).

Essentially, the DOJ is attempting two maneuvers with this section of argument. First, the DOJ is trying to harmonize the Second Circuit's decision with the Nardello line of cases so as to suggest to SCOTUS that the DiCristina case does not signal some radical departure from established federal criminal law requiring intervention by the Court. Second, the DOJ is also responding to the criticism by DiCristina and his supporting amici that the Second Circuit's decision would permit IGBA prosecutions for a wide range of activities—e.g., bridge or Scrabble—not widely considered to be traditional gambling. The DOJ's resistance suggests that, since poker is and has long been widely considered "gambling" under many state laws, SCOTUS need not take this case to prevent potential federal overreach with respect to other games. In other words, the DOJ is arguing that SCOTUS need not waste its time on this case because regarding poker as gambling is entirely reasonable; let the Scrabble folks petition if and when they are ever actually prosecuted under the IGBA.

E. Alleged Circuit Split on Including-But-Not-Limited-To Clauses

Perhaps sensing how weak the argument is, the DOJ spends little time responding the DiCristina's contention that cert should be granted to resolve a split among lower appellate courts as to the interpretation of "including but not limited to" clauses in statutes and contracts. (Resistance, pp. 19-25). The DOJ primarily argues that the alleged "split" in authority is overstated, with most courts taking a much more nuanced and case-specific approach to such clauses than asserted by DiCristina's Petition. The DOJ also argues that application of a narrow construction of the "including but not limited to" clause in the IGBA would not change the outcome of the case. (Resistance, pp. 24-25). In construing the IGBA's list of prohibited gambling business activities, the DOJ argues that the natural analysis of the underlying games is based on a common characteristic of "wagering of money on an uncertain outcome" rather than an analysis of whether skill or chance predominates in each game.

Frankly, this entire issue continues to strike me as contrived, a desperate effort to gin up a circuit split to catch SCOTUS' attention. But I just don't see how this issue makes any difference to SCOTUS' cert decision. If SCOTUS wants to decide if poker is covered by the IGBA, that is a viable federal question which the Court could choose to review even in the absence of a circuit split (though review is much less likely in the absence of such a split). And if SCOTUS does not want to address the IGBA-poker issue, the Court certainly won't take the case merely to resolve a perceived circuit split over a rule of statutory construction. The entire issue simply distracts SCOTUS from the entire point of the cert Petition, which is to highlight the need for the Court to provide guidance on the scope of a federal criminal statute.

III. Conclusion

At this point, the legal arguments are fairly well hashed out. Despite a few questionable tactical decisions, DiCristina's legal team has easily out-classed the DOJ in terms of the quality of their briefs. But the DOJ has three built-in advantages: a) defending a government-favorable Circuit Court of Appeals decision related to a federal criminal statute; b) the absence of a real circuit split as to the interpretation of the IGBA; and c) the inherent advantage of SCOTUS' highly selective and limited docket.